85R9799 AAF-F
By: Burns H.B. No. 3028
A BILL TO BE ENTITLED
AN ACT
relating to groundwater ownership and rights.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.001, Water Code, is amended by adding
Subdivision (32) to read as follows:
(32) "Fair share" means a reasonable quantification,
based on the best available science, of the amount of groundwater in
place beneath each tract of land overlying an aquifer, subdivision
of an aquifer, or geologic formation that may be produced:
(A) under the applicable desired future
conditions adopted under Section 36.108;
(B) under the operating and hydrogeological
conditions of the area; and
(C) without resulting in the confiscation by
uncompensated drainage of the fair share of groundwater in place
under other tracts of land.
SECTION 2. Sections 36.002(b), (b-1), (c), and (d), Water
Code, are amended to read as follows:
(b) The groundwater ownership and rights recognized
[described] by this section entitle the landowner, including a
landowner's lessees, heirs, or assigns, to:
(1) drill for and produce the groundwater below the
surface of real property, subject to Subsection (d), without
causing waste or malicious drainage of other property or
negligently causing subsidence; [and]
(2) be afforded a fair share of groundwater when the
right to drill a well and produce groundwater is regulated under
this chapter; and
(3) have any other right recognized under common law.
(b-1) The groundwater ownership and rights recognized
[described] by this section do not:
(1) entitle a landowner, including a landowner's
lessees, heirs, or assigns, to the [right to capture a] specific
amount of groundwater below the surface of that landowner's land;
or
(2) affect the existence of common law defenses or
other defenses to liability under the rule of capture.
(c) Nothing in this code shall be construed as granting the
authority to deprive or divest a landowner, including a landowner's
lessees, heirs, or assigns, of the groundwater ownership and rights
recognized [described] by this section.
(d) This section does not:
(1) prohibit a district from adopting or enforcing
rules authorized under this chapter for a public purpose consistent
with Section 59, Article XVI, Texas Constitution [limiting or
prohibiting the drilling of a well by a landowner for failure or
inability to comply with minimum well spacing or tract size
requirements adopted by the district]; or
(2) [affect the ability of a district to regulate
groundwater production as authorized under Section 36.113, 36.116,
or 36.122 or otherwise under this chapter or a special law governing
a district; or
[(3)] require that a rule adopted by a district
allocate to each landowner a proportionate share of available
groundwater for production from the aquifer based on the number of
acres owned by the landowner.
SECTION 3. Section 36.066(g), Water Code, is amended to
read as follows:
(g) If the district prevails in any suit other than a suit in
which it voluntarily intervenes or in which it challenges the
validity of a law, rule, or order under the Texas Constitution, the
district may seek and the court may [shall] grant, in the interests
of justice and as provided by Subsection (h), in the same action,
recovery for attorney's fees, costs for expert witnesses, and other
costs incurred by the district before the court. The amount of the
attorney's fees shall be fixed by the court.
SECTION 4. Section 36.101(a), Water Code, is amended to
read as follows:
(a) A district may make and enforce rules, including rules
limiting groundwater production based on tract size or the spacing
of wells, to provide for conserving, preserving, protecting, and
recharging of the groundwater or of a groundwater reservoir or its
subdivisions in order to control subsidence, prevent degradation of
water quality, or prevent waste of groundwater and to carry out the
powers and duties provided by this chapter. In adopting a rule
under this chapter, a district [shall]:
(1) shall consider all groundwater uses and needs;
(2) shall develop rules that are fair and impartial;
(3) shall protect [consider] the groundwater
ownership and rights recognized [described] by Section 36.002;
(4) may not restrict the exercise of a person's
groundwater ownership and rights unless it is necessary
for [consider] the public interest in conservation, preservation,
protection, recharging, and prevention of waste of groundwater, and
of groundwater reservoirs or their subdivisions, and in controlling
subsidence caused by withdrawal of groundwater from those
groundwater reservoirs or their subdivisions, consistent with the
objectives of Section 59, Article XVI, Texas Constitution;
(5) shall consider the goals developed as part of the
district's management plan under Section 36.1071; and
(6) may not discriminate between land that is
irrigated for production and land that was irrigated for production
and enrolled or participating in a federal conservation program.
SECTION 5. Section 36.1071(a), Water Code, is amended to
read as follows:
(a) Following notice and hearing, the district shall, in
coordination with surface water management entities on a regional
basis, develop a management plan that addresses the following
management goals, as applicable:
(1) providing the most efficient use of groundwater;
(2) controlling and preventing waste of groundwater;
(3) controlling and preventing subsidence;
(4) addressing conjunctive surface water management
issues;
(5) addressing natural resource issues;
(6) addressing drought conditions;
(7) addressing conservation, recharge enhancement,
rainwater harvesting, precipitation enhancement, or brush control,
where appropriate and cost-effective; [and]
(8) addressing the desired future conditions adopted
by the district under Section 36.108; and
(9) protecting the groundwater ownership and rights
recognized by Section 36.002.
SECTION 6. The heading to Section 36.108, Water Code, is
amended to read as follows:
Sec. 36.108. ESTABLISHING DESIRED FUTURE CONDITIONS [JOINT
PLANNING] IN MANAGEMENT AREA.
SECTION 7. Sections 36.108(c), (d), and (d-2), Water Code,
are amended to read as follows:
(c) The district representatives shall meet at least
annually to [conduct joint planning with the other districts in the
management area and to] review the management plans, the
accomplishments of the management area, and proposals to adopt new
or amend existing desired future conditions. In reviewing the
management plans, the districts shall consider:
(1) the goals of each management plan and its impact on
planning throughout the management area;
(2) the effectiveness of the measures established by
each district's management plan for protecting private property
rights, conserving and protecting groundwater, and preventing
waste, and the effectiveness of these measures in the management
area generally;
(3) any other matters that the boards consider
relevant to the protection of private property rights, protection
and conservation of groundwater, and the prevention of waste in the
management area; and
(4) the degree to which each management plan achieves
the desired future conditions adopted under Subsection (d-4)
[established during the joint planning process].
(d) Not later than September 1, 2010, and every five years
thereafter, the districts shall consider groundwater availability
models and other data or information for the management area and
shall propose for adoption desired future conditions for the
relevant aquifers within the management area. Before voting on the
proposed desired future conditions of the aquifers under Subsection
(d-2), the districts shall consider:
(1) aquifer uses or conditions within the management
area, including conditions that differ substantially from one
geographic area to another;
(2) the water supply needs and water management
strategies included in the state water plan;
(3) hydrological conditions, including for each
aquifer in the management area the total estimated recoverable
storage as provided by the executive administrator, and the average
annual recharge, inflows, and discharge;
(4) other environmental impacts, including impacts on
spring flow and other interactions between groundwater and surface
water;
(5) the impact on subsidence;
(6) socioeconomic impacts reasonably expected to
occur;
(7) the impact on the interests and rights in private
property, including ownership and the rights of management area
landowners and their lessees and assigns in groundwater as
recognized by [under] Section 36.002;
(8) the feasibility of achieving the desired future
condition; and
(9) any other information relevant to the specific
desired future conditions.
(d-2) The desired future conditions proposed and approved
under this section [Subsection (d)] must allow [provide a balance
between] the highest practicable level of groundwater production of
the total estimated recoverable storage that is consistent with the
groundwater ownership and rights recognized by Section 36.002,
[and] the reasonable conservation, preservation, protection,
recharging, and prevention of waste of groundwater, and control of
subsidence in the management area. This subsection does not
prohibit the establishment of desired future conditions that
provide for the reasonable long-term management of groundwater
resources consistent with the management goals under Section
36.1071(a). The desired future conditions proposed under
Subsection (d) must be approved by a two-thirds vote of all the
district representatives for distribution to the districts in the
management area. A period of not less than 90 days for public
comments begins on the day the proposed desired future conditions
are mailed to the districts. During the public comment period and
after posting notice as required by Section 36.063, each district
shall hold a public hearing on any proposed desired future
conditions relevant to that district. During the public comment
period, the district shall make available in its office a copy of
the proposed desired future conditions and any supporting
materials, such as the documentation of factors considered under
Subsection (d) and groundwater availability model run results.
After the public hearing, the district shall compile for
consideration at the next joint planning meeting a summary of
relevant comments received, any suggested revisions to the proposed
desired future conditions, and the basis for the revisions.
SECTION 8. Sections 36.113(c), (d), (e), (f), and (h),
Water Code, are amended to read as follows:
(c) A district may require that the following be included in
the permit or permit amendment application:
(1) the name and mailing address of the applicant and
the owner of the land on which the well will be located;
(2) if the applicant is other than the owner of the
property, documentation establishing the applicable authority to
construct and operate a well for the proposed use;
(3) a statement of the nature and purpose of the
proposed use and the amount of water to be used for each purpose;
(4) a water conservation plan or a declaration that
the applicant will comply with the district's management plan;
(5) the location of each well and the estimated rate at
which water will be withdrawn;
(6) a water well closure plan or a declaration that the
applicant will comply with well plugging guidelines and report
closure to the commission; [and]
(7) a drought contingency plan; and
(8) documentation of the applicant's ownership
interest in the proposed groundwater production that demonstrates:
(A) the application is consistent with the
applicant's fair share; and
(B) the applicant's production of groundwater
will not result in the confiscation by uncompensated drainage of
another person's fair share.
(d) This subsection does not apply to the renewal of an
operating permit issued under Section 36.1145. Before granting or
denying a permit, or a permit amendment issued in accordance with
Section 36.1146, the district shall consider whether:
(1) the application conforms to the requirements
prescribed by this chapter and is accompanied by the prescribed
fees;
(2) the proposed use of water unreasonably affects the
groundwater ownership and rights recognized by Section 36.002 or
existing groundwater and surface water resources [or existing
permit holders];
(3) the proposed use of water is dedicated to any
beneficial use;
(4) the proposed use of water is consistent with the
district's approved management plan;
(5) if the well will be located in the Hill Country
Priority Groundwater Management Area, the proposed use of water
from the well is wholly or partly to provide water to a pond, lake,
or reservoir to enhance the appearance of the landscape;
(6) the applicant has agreed to avoid waste and
achieve water conservation; and
(7) the applicant has agreed that reasonable diligence
will be used to protect groundwater quality and that the applicant
will follow well plugging guidelines at the time of well closure.
(e) The district may impose more restrictive permit
conditions on new permit applications and permit amendment
applications to increase use by historic users if the limitations:
(1) apply to all subsequent new permit applications
and permit amendment applications to increase use by historic
users, regardless of type or location of use;
(2) bear a reasonable relationship to the existing
district management plan; [and]
(3) are reasonably necessary to protect existing use;
and
(4) are consistent with the groundwater ownership and
rights recognized by Section 36.002 and with Section 59, Article
XVI, Texas Constitution.
(f) This subsection does not apply to the renewal of an
operating permit issued under Section 36.1145. Permits, and permit
amendments issued in accordance with Section 36.1146, may be issued
subject to the rules promulgated by the district and subject to
terms and provisions with reference to the drilling, equipping,
completion, alteration, or operation of, or production of
groundwater from, wells or pumps that may be necessary to:
(1) protect the groundwater ownership and rights
recognized by Section 36.002;
(2) prevent waste and achieve water conservation;
(3) [,] minimize as far as practicable the drawdown of
the water table or the reduction of artesian pressure;
(4) [,] lessen interference between wells; [,] or
(5) control and prevent subsidence.
(h) In issuing a permit for an existing or historic use, a
district may not:
(1) discriminate between land that is irrigated for
production and land or wells on land that was irrigated for
production and enrolled or participating in a federal conservation
program; or
(2) issue a permit that will result in the
confiscation by uncompensated drainage of another person's fair
share.
SECTION 9. Section 36.116, Water Code, is amended to read as
follows:
Sec. 36.116. REGULATION OF SPACING AND PRODUCTION. (a) In
order to protect the groundwater ownership and rights recognized by
Section 36.002, to minimize as far as practicable the drawdown of
the water table or the reduction of artesian pressure, to control
subsidence, to prevent interference between wells, to prevent
degradation of water quality, or to prevent waste, a district by
rule may regulate:
(1) the spacing of water wells by:
(A) requiring all water wells to be spaced a
certain distance from property lines or adjoining wells;
(B) requiring wells with a certain production
capacity, pump size, or other characteristic related to the
construction or operation of and production from a well to be spaced
a certain distance from property lines or adjoining wells; or
(C) imposing spacing requirements adopted by the
board; and
(2) the production of groundwater by:
(A) setting production limits on wells;
(B) limiting the amount of water produced based
on acreage or tract size;
(C) limiting the amount of water that may be
produced from a defined number of acres assigned to an authorized
well site;
(D) limiting the maximum amount of water that may
be produced on the basis of acre-feet per acre or gallons per minute
per well site per acre;
(E) managed depletion; or
(F) any combination of the methods listed above
in Paragraphs (A) through (E).
(b) In promulgating any rules limiting groundwater
production, the district:
(1) may preserve historic or existing use before the
effective date of the rules to the maximum extent practicable
consistent with the groundwater ownership and rights recognized by
Section 36.002, Section 59, Article XVI, Texas Constitution, and
the district's management plan under Section 36.1071 and as
provided by Section 36.113; and
(2) may adopt a rule only if the district finds that
the rule is consistent with the public interest.
(c) In regulating the production of groundwater based on
tract size or acreage, a district may consider the service needs or
service area of a retail public utility in a manner consistent with
and without resulting in the confiscation by uncompensated drainage
of the groundwater ownership and rights recognized by Section
36.002. For the purposes of this subsection, "retail public
utility" has [shall have] the meaning provided by Section 13.002.
(d) For the protection of the groundwater ownership and
rights recognized by Section 36.002 and better management of the
groundwater resources located in a district or if a district
determines that conditions in or use of an aquifer differ
substantially from one geographic area of the district to another,
the district may adopt different rules for:
(1) each aquifer, subdivision of an aquifer, or
geologic strata located in whole or in part within the boundaries of
the district; or
(2) each geographic area overlying an aquifer or
subdivision of an aquifer located in whole or in part within the
boundaries of the district.
(e) In regulating the production of groundwater under
Subsection (a)(2), a district:
(1) shall select a method that is appropriate based on
the protection of the groundwater ownership and rights recognized
by Section 36.002 and hydrogeological conditions of the aquifer or
aquifers in the district; and
(2) may limit the amount of water produced based on
contiguous surface acreage.
(f) A rule adopted under this section must afford each
person who has an ownership interest in the groundwater within the
boundaries of the district a fair share of the groundwater as
recognized by Section 36.002.
SECTION 10. Subchapter D, Chapter 36, Water Code, is
amended by adding Section 36.1161 to read as follows:
Sec. 36.1161. PETITION FOR RULEMAKING. (a) A person who
has an ownership interest in groundwater may petition a district
with authority to regulate the groundwater to adopt rules under
Section 36.116(d).
(b) The petitioner has the burden of proof that the rules
are necessary to protect the groundwater ownership and rights
recognized by Section 36.002 or to achieve a purpose of this chapter
because conditions in or use of an aquifer, subdivision of an
aquifer, or geologic strata differ substantially from:
(1) another aquifer, subdivision of an aquifer, or
geologic strata;
(2) any aquifer, subdivision of an aquifer, or
geologic strata not currently included in an established desired
future condition, as of January 1, 2013; or
(3) one geographic area of the district to another.
(c) A district shall require the petitioner to provide
written notice to each person with an ownership interest in
groundwater that would be affected by the rules requested in the
petition.
(d) A district may request technical assistance regarding
the technical merits of the petition from the Texas Water
Development Board. The Texas Water Development Board shall provide
a written technical response not later than the 60th day after the
date the Texas Water Development Board receives a written request
for assistance by the district under this subsection.
(e) A district shall hold a hearing to consider a petition
submitted under this section in the manner provided by Section
36.101. A district is not required to provide notice required by
Sections 36.101(d)(1) through (4).
(f) A board may grant, modify, or deny a petition by written
order. The order must include the findings of the board relevant to
the evidence provided by the petitioner under Subsection (b).
(g) A person affected by and dissatisfied with a rule
adopted under this section is entitled to file a suit against the
district or its directors under Section 36.251.
SECTION 11. Section 36.117(a), Water Code, is amended to
read as follows:
(a) A district by rule may provide an exemption from the
district's requirement to obtain any permit required by this
chapter or the district's rules if the exemption is consistent with
the groundwater ownership and rights recognized by Section 36.002.
SECTION 12. The changes in law made by this Act apply only
to an application for a permit or a permit amendment that is
received by a groundwater conservation district on or after the
effective date of this Act. An application for a permit or permit
amendment that is received before the effective date of this Act is
governed by the law in effect on the date the application is
received, and that law is continued in effect for that purpose.
SECTION 13. The changes in law made by this Act apply only
to a rule of a groundwater conservation district that is adopted on
or after the effective date of this Act. A rule adopted before the
effective date of this Act is subject to the law in effect on the
date the rule took effect, and that law is continued in effect for
that purpose.
SECTION 14. This Act takes effect September 1, 2017.